The Court referred to other constitutional provisions from which one can understand the constitutional principle of secularism. In order for the formal and substantive theories to coexist, the amendment power needs to be comprehended in terms of delegation. Constitutions may be modified according to a procedure stipulated within them, 1 or outside of the formal amendment process, 2 for instance, through judicial interpretations or practice. Today, judicial review of constitutional amendment is an existing practice in various jurisdictions. At least when it comes to unamendable provisions, judicial review of amendments seems to be a similar intellectual operation as ordinary judicial review; it is an examination of the compliance of a given legal standard to a superior standard. Then again that comparison seems inappropriate when it comes to judicial review of constitutional amendments.

Citing articles via Web of Science It is an exceptional authority, yet a limited one. Is the constitutional amendment power an exercise of constituent power or constituted power? Indeed, the abuse of power is to be feared not only from the legislative branch in its ordinary legislative power but also from the legislature in its constitutional amendment power. An unconstitutional constitutional amendment—The Turkish perspective:

However, this is the exception rather than the rule.

Leyla Sahin, the applicant, considered it her religious duty to wear the Islamic headscarf. Turkey15 H UM. Even in Switzerland, where the Federal Council recognized jus cogens as an implicit limitation on constitutional amendments, the reasoning was based upon the national con- stitutional order.

dissertation pouvoir constituant originaire et dérivé

In that respect, unamendability can be explained by the metaphor of a lock on a door. Stephen Griffin described this notion: The second is whether the content of the protected unamendable subject is undemocratic.

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But this is only a matter of a degree, not of a kind. The conflict that the court then decides is between the will of the people exercised by the primary constituent power — a supra temporal will that lasts for long terms — expressed in the basic principles of the constitution, and the temporary will of the people as expressed in a constitutional amendment. When resolving conflicts between constitutional provisions unamendable dssertation contrasted with later cohstituantthe paramount factor is not their chronological order of enactment lex posterior derogat prioribut rather, the sources of these constitutional norms.


On the other hand, a juridical concept of constituent power is exercised in according to rules established by the constitution. The fruit grower does not forbid his servants engrafting the with-hazel or the poisonous sumac on his apple trees; the process is forbidden by a law higher and more imperative than any he could declare, and to which no additional force could possibly by given by re-enactment under this orders.

Nonetheless the two are not identical.

If limited authorities can eradicate their own limits at will, there is no purpose for such limitations, as the distinction between a limited and unlimited fissertation would simply be abolished.

In the Dahlab case discussed above, the ECtHR held that a ban on wearing the Islamic veil in a primary school was justified in order to guarantee religious neutrality in the classroom. For Muslim women, wearing the headscarf cobstituant them to be present in the public sphere in a manner consistent with their Islamic beliefs, allowing them to study in universities and pursue professional careers.

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Secularism is the civil organiser of political, social and cultural life, based on national sovereignty, democracy, freedom and science.

Turkey, Zeynep Tekin v. Constitutional law adopts an entirely opposite approach. Taming Regressive Constitutional Amendments: The delegated amendment power is the internal method that the constitution provides for its self-preservation.

dissertation pouvoir constituant originaire et dérivé

Such are principles that the Constitution itself explicitly contemplates as absolute limits to eh power of constitutional revision, such as the republican form … conatituant well as principles that, although not expressly mentioned among those not subject to the principle of constitutional revision, are part of the supreme values on which the Italian Constitution is based.


It no longer amends the constitution but constitutes a new one. On Sovereignty CUP On the one hand, in order to maintain itself and progress with time, a constitution must be able to change and adapt. Natural law is not primarily concerned with the structure or constituwnt of law, but rather with its content. How to write a dissertation is on Facebook.

Marbury33 H ARV. That is why Elisha Mulford described an unamendable constitution as: The second stage is to amend the previously unamendable principle or provision, which is no longer protected from amendments. Turkey, supra note 14, at para.

dissertation pouvoir constituant originaire et dérivé

Inboth chambers of the Federal Assembly declared a Volksinitiative to amend the Constitution to be invalid for violating the internationally recognized peremptory prohibition of refoulement. But should not the review of amendments be left to the political spheres? Barnave explained that the total change of the Constitution could not be predicted or controlled by the Constitution, because it is an unlimited power belonging inherently to the nation.

Berg, Slouching Toward Secularism: According to the Court, article 1 of the amendments imposes an obligation on both state organs and administrative authorities to act in compliance with the principle of equality before the law in all their proceedings and to ensure that individuals utilize public services in compliance with the principle of equality before the law. This investigation is imperative in light of recent arguments according to which in our globalized world, international law especially international human rights law and regional law especially in Europe may have a central role in the judicial assessment of constitutional amendments.